War on civil society in Egypt?

On November 29, 2016, the Egyptian parliament approved the draft law regulating the activity of civil organizations and institutions submitted by MP Abdul Hadi al-Qasabi on September 6, 2016.

This was tantamount to a declaration of war on civil society and an attempt to crack down on all active and supportive human rights organizations.

For more than 20 years now, the state has been committing a number of practices aimed to suppress and restrict these organizations and their members, but the recent parliament decision surpassed all previous practices.

As on the date of this report, the draft law was still pending between the president and the parliament, but it was likely to be promulgated by the President at any time. As soon as promulgated, the provisions of this law would govern civil activity in Egypt.

I. The draft law violates the Egyptian constitution

Article 75 of the constitution reads as follows:

“Citizens have the right to form non-governmental organizations and institutions on a democratic basis, which shall acquire legal personality upon notification. They shall be allowed to engage in activities freely. Administrative agencies shall not interfere in the affairs of such organizations, dissolve them, their board of directors, or their board of trustees except by a judicial ruling. The establishment or continuation of non-governmental organizations and institutions whose structure and activities are operated and conducted in secret, or which possess a military or quasi-military character are forbidden, as regulated by law.”

The constitution stressed that organizations and institutions would become a legal entity upon notification. Legal entities are created by the convergence of the will of their founders. It is this will that brings them to life.

Article 8 of the draft NGO law violated this constitutional inclination. The mentioned article required registration for conferring to an NGO the legal entity status. Moreover Article 10/3 specified that in order to open a bank account, the NGO must obtain a letter to this effect from the competent administrative authority. This makes the establishment of an organization subject to a permission and authorization rather than to notification as set forth by the constitution.

Article 13/1 of the draft law limited the organizations’ fields of work to social development only, which is a restriction of the choice of fields of work that the organization may deem appropriate and necessary. The constitution had only banned, on an exhaustive basis, NGOs whose structure and activities are operated and conducted in secret, or which possess a military or quasi-military character. Therefore, it is not admissible to expand this restriction and prohibition because the basic principle is freedom of activity.

Article 14 of the draft law required the organization’s activities to be in line with the “state’s plan, development needs and priorities,” and this is inconsistent with the text of the constitution, which emphasized that organizations shall be allowed to “engage in activities freely.”

According to Article 14(g) of the draft law, if the organization/institution’s activities consisted of conducting or publishing opinion polls or otherwise making the results of such polls available or conducting field research or displaying their results, these activities must be subject to the supervision of the competent regulatory authority in charge of ascertaining the integrity and impartiality of these activities. The draft law requires some organizations, which conduct field research and opinion polls and disseminate their results, to submit these results to the [National Agency for the Regulation of Foreign Non-Governmental Organizations] before their publication, which allows the administrative authority to intervene in such activities or prevent publication.

Moreover, Article 14(h) specifies that the [National Agency for the Regulation of Foreign Non-Governmental Organizations] must be notified of any agreement in any form with a foreign entity inside or outside the country, as well as of any amendment thereto.

Some sentences in the draft law may be interpreted to restrict the organizations freedom to choose their activities or as an excuse to dissolve organizations such as the expression “activity of a political nature.” This means that under the NGOs draft law, organizations are prohibited from encouraging citizens’ participation in public life, set forth as a national duty by Article 87 of the constitution.

II - The draft law impedes civil and voluntary work

Article 8 of the draft law imposed a fee up to 10,000 EGP ($600) for the registration of an organization. This is an exaggerated increase of the fee specified under the old law, which stands at 100 EGP ($6) only. Moreover, the draft law also required the organization to allocate 50,000 EGP ($2900) for the achievement of its objectives compared to only 10,000 EGP required by the old law. The draft law specified that foreign organizations must pay a fee not exceeding 300,000 EGP ($17,200) to obtain, renew, or modify their license.

According to Article 3, the organization shall have an independent headquarters appropriate for the exercise of its activity, which entails more financial burdens that impede the incorporation of NGOs.

Article 23 has set forth arbitrary restrictions on organizations when it comes to collecting internal donations. The organization must notify and obtain the approval of the administrative authority 30 (thirty) business days before receiving or collecting any funds. The Agency may deny approval with no need for justification.

The arbitrary conditions for foreign financing are as follows: An organization must notify the Agency of receiving funds from abroad and shall deposit these funds in the organization’s bank account. In order for these funds to be disbursed to an organization, the Agency must be notified thereof 30 working days in advance. The law granted the Agency the right to refuse such financial grants to any NGO, within 60 days as of the date of its receipt of the notification, during which the funds shall be frozen. This means that a lack of response from the Agency would be considered a refusal. It appears that the legislator did not oblige the Agency to respond to the notification and rather considered the lack of response as a refusal. The legislator also did not require the Agency to justify its decision to refuse disbursing the funds to an organization. This is entails extremely dangerous effects that may lead the donors to fear the risk of seeing their donations placed under custody and their accounts frozen without any amount being disbursed to finance the targeted activities.

The draft law grants the Agency absolute powers to intervene in the work of organizations and their internal affairs and goes against the principles of freedom of association, by setting forth requirements of prior approval for certain activities, such as cooperation or affiliation with foreign organizations or receipt of funds from inside or outside Egypt. The draft law also conferred to the administrative authority [the Agency] the power to veto or disqualify candidates for membership of the boards of directors in every organization.

III - The management of work of NGOs by an exceptional security apparatus

Although the work of NGOs is of a civil nature, the draft law provided for the establishment of supervisory authority with a semi-military structure to regulate the work of NGOs. Indeed, the draft law authorized the National Agency for the Regulation of Foreign Non-Governmental Organizations to control the management of the work and activity of NGOs and vested this Agency with all powers and competences. Article 72 of the law specified that the Agency’s members of board of directors shall be composed of representative of the following authorities: the Ministry of Foreign Affairs, Ministry of Defense, Ministry of Justice, Ministry of Interior, Ministry of International Cooperation, Ministry of Social Solidarity, the General Intelligence Service, the Central Bank, the Anti-Money Laundering Unit and the Administrative Oversight Board.

IV - Sanctions

The draft law has set forth several exaggerated penalties. Article 87(a) specifies for an imprisonment sanction of up to five years and fine of up to one million Egyptian Pounds in case of failure by organizations to regularize their situation in accordance with the provisions of this draft law. It also provides for the dissolution of the violating organizations and the transfer of their funds to civil organizations support fund.

Moreover, Article 88(a) of the draft law provided for an imprisonment sanction of up to one year or a fine of up to 500,000 EGP ($29,000) against any natural person or legal entity that grants a license for the exercise of any activity that falls within the scope of activity of NGOs contrary to the decision of the competent administrative authority. This article aims to persuade civil servants and other public officials from registering companies for fear of being sanctioned under this law.

Any entity carrying out civil or human rights activity, whatever its legal status and structure shall be subject to this law. In case of discrepancy between the provisions of this law and the provision of any other law, the provisions of the NGO draft law shall prevail.